ORDER-Granting-Motion-for-Release-on-Recognizance

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF WISCONSIN 

BRENDAN DASSEY, 

Petitioner, 

v. Case No. 14-CV-1310 

MICHAEL A. DITTMANN, 

Respondent. 

<strong>ORDER</strong> 

I. Facts and Procedural History 

On August 12, 2016, this court granted Brendan Dassey’s petition <strong>for</strong> a writ of 

habeas corpus. (ECF No. 23); Dassey v. Dittmann, 2016 WL 4257386, 2016 U.S. Dist. 

LEXIS 106971 (E.D. Wis. Aug. 12, 2016). The court concluded that, when viewed 

collectively, various assertions and assurances the investigators repeatedly made to 

Dassey amounted to false promises that he would not be punished. These false 

promises, when considered in conjunction with the fact that Dassey was only 16-years 

old, had significant intellectual deficits, had no prior experience with law en<strong>for</strong>cement 

aside from this investigation, was alone with the investigators without the benefit of an 

Case 1:14-cv-01310-WED Filed 11/14/16 Page 1 of 17 Document 37

attorney or other allied adult, as well as other factors, rendered Dassey’s confession 

involuntary under the Fifth and Fourteenth Amendments. 

The court gave the state 90 days to decide whether it would retry Dassey. If it did 

not initiate proceedings to retry him, the court ordered Dassey released. The court’s 

order also stated that, “[i]n the event the respondent files a timely notice of appeal, the 

judgment will be stayed pending disposition of that appeal.” The purpose of such a stay 

was to avoid the obvious inefficiency of <strong>for</strong>cing the state to retry Dassey while 

concurrently appealing this court’s decision. Cf. Harris v. Thompson, 2013 U.S. App. 

LEXIS 16715, 8-9 (7th Cir. Feb. 20, 2013) (“[W]e do not think it prudent to require the 

State to begin a retrial be<strong>for</strong>e the Supreme Court’s resolution of the certiorari petition.”). 

A stay also prevented the complications and confusion that could result if Dassey were 

to be acquitted in a retrial be<strong>for</strong>e the court of appeals reached a decision. See Newman v. 

Harrington, 917 F. Supp. 2d 765, 791 (N.D. Ill. 2013). 

The respondent appealed (ECF No. 25), triggering the stay. 

On September 14, 2015, Dassey filed a motion <strong>for</strong> release while the respondent 

appeals this court’s decision. (ECF No. 29.) Dassey contends that release is appropriate 

because it is unlikely that the court of appeals will reverse this court’s decision, he does 

not pose a risk of danger to the community, and he is not a flight risk. (ECF No. 29-1.) 

He proposes a detailed release plan prepared with the assistance of a clinical social 

worker. (ECF No. 29-5.) 


The respondent opposes the motion, contending first that this court’s stay 

divested it of jurisdiction to decide whether Dassey should be released pending the 

appeal. As to the merits of Dassey’s motion, the respondent contends that the relevant 

factors favor denying Dassey’s motion. 

II. 

Effect of the Court’s Stay 

Federal Rule of Appellate Procedure 23(c) states, “While a decision ordering the 

release of a prisoner is under review, the prisoner must—unless the court or judge 

rendering the decision, or the court of appeals, or the Supreme Court, or a judge or 

justice of either court orders otherwise—be released on personal recognizance, with or 

without surety.” “Rule 23(c) undoubtedly creates a presumption of release from 

custody ….” Hilton v. Braunskill, 481 U.S. 770, 774 (1987); see also O'Brien v. O'Laughlin, 

557 U.S. 1301, 1301 (2009) (Breyer, J., in chambers). Rule 23 is an exception to the general 

rule that the filing of a notice of appeal generally “divests the district court of its control 

over those aspects of the case involved in the appeal,” Wis. Mut. Ins. Co. v. United States, 

441 F.3d 502, 504 (7th Cir. 2006) (quoting Griggs v. Provident Consumer Discount Co., 459 

U.S. 56, 58 (1982)). Stein v. Wood, 127 F.3d 1187, 1189 (9th Cir. 1997). 

With regard to the respondent’s argument that this court’s stay divested it of 

jurisdiction to decide whether Dassey should be released pending the appeal, the stay 

addressed only the order that Dassey be released under 18 U.S.C. § 2254 or retried 

within 90 days. That stay does not govern whether Dassey should be released pursuant 


to Rule 23 while the respondent’s appeal is pending. See, e.g., Hampton v. Leibach, 2001 

U.S. Dist. LEXIS 20983, 4 (N.D. Ill. Dec. 18, 2001) (“The Court agrees that it is 

appropriate to permit the state to defer its decision whether to retry Hampton until the 

conclusion of the appeal -- thus resolving respondent’s primary claim of irreparable 

injury -- but that does not govern whether Hampton should be released pursuant to 

Rule 23(c) while respondent’s appeal is pending.”). 

In Walberg v. Israel, 776 F.2d 134 (7th Cir. 1985), the court of appeals granted the 

petitioner’s writ of habeas corpus and ordered the state to release him unless it retried 

him within 120 days. Id. at 135. However, the court stayed its mandate to allow the 

respondent to petition the Supreme Court <strong>for</strong> certiorari. Id. The state did so. When the 

petitioner subsequently sought release pursuant to Rule 23, a dispute arose as to 

whether it was <strong>for</strong> the court of appeals or <strong>for</strong> the Supreme Court to decide whether the 

petitioner should be released in the interim. Id. Despite its stay, the court of appeals 

concluded that the issue was <strong>for</strong> it to decide. Id. 

This court likewise concludes that, notwithstanding its stay of its judgment 

pending the respondent’s appeal, it remains this court’s obligation to address in the first 

instance whether Dassey should be released while the court of appeals considers the 

respondent’s appeal. 


III. 

Legal Standard 

In evaluating whether the respondent can overcome the presumption that 

Dassey is to be released pending the appeal, the court evaluates those factors generally 

relevant to the issuance of a stay: (1) likelihood of success on the merits; (2) the risk of 

irreparable injury; (3) the potential <strong>for</strong> injury to interested parties; and (4) the public 

interest. Harris v. Thompson, 2013 U.S. App. LEXIS 16715, 3 (7th Cir. Feb. 20, 2013); 

Hilton, 481 U.S. at 776. The Court in Hilton summarized how to weigh whether the 

factors rebut Rule 23’s presumption of release as follows: “Where the State establishes 

that it has a strong likelihood of success on appeal, or where, failing that, it can 

nonetheless demonstrate a substantial case on the merits, continued custody is 

permissible if the second and fourth factors in the traditional stay analysis militate 

against release.” Hilton, 481 U.S. at 778. Among the matters that a court should consider 

are whether there is a risk that the petitioner might flee and whether the petitioner 

would pose a danger to the community if released. Id. at 777. 

The respondent’s arguments against release rely generally upon conclusory 

assertions that the state, the public, and the victim’s family all have an interest in 

ensuring that persons convicted of serious crimes are incarcerated. (ECF No. 31 at 12- 

13.) The respondent does not specifically address the sufficiency of the detailed release 

plan proffered by Dassey, suggest that the court should require surety, or otherwise 


propose any conditions that the court should impose if it concludes that release is 

appropriate. 

IV. 

Likelihood of Success on the Merits 

Regarding the likelihood of success on the merits, one court has noted a measure 

of “‘dissonance’ associated with a district court’s consideration of ‘the likelihood of 

being reversed.’” Newman v. Harrington, 917 F. Supp. 2d 765, 788 (N.D. Ill. 2013). “[A]ny 

attempt to predict the likelihood of reversal of its own decision places the Court in the 

awkward position of second guessing its own work.” Id. at 791. A court does not issue a 

decision unless it firmly believes it to be correct and consistent with all applicable law 

and precedent. Id. at 788. 

But every judge must be conscious of the fact that his or her judgment is not 

beyond the possibility of reversal. As famously expressed by Justice Jackson: 

Whenever decisions of one court are reviewed by another, a percentage of 

them are reversed. That reflects a difference in outlook normally found 

between personnel comprising different courts. However, reversal by a 

higher court is not proof that justice is thereby better done. There is no 

doubt that if there were a super-Supreme Court, a substantial proportion 

of our reversals of state courts would also be reversed. We are not final 

because we are infallible, but we are infallible only because we are final. 

Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). 

In habeas cases especially, there is always a not insignificant likelihood that the 

respondent will prevail on appeal. See Etherly v. Schwartz, 590 F.3d 531, 532 (7th Cir. 

2009). The court of appeals reviews this court’s decision anew, without deference to the 


fact that the district court granted the petition. Nevertheless, even with the passage of 

the Antiterrorism and Effective Death Penalty Act (AEDPA), the presumption in favor 

of release in Rule 23(c) remains. Thus, more is required to rebut the Rule 23(c) 

presumption of release than noting the fact that AEDPA imposes a significant burden 

<strong>for</strong> a petitioner. 

There are two ways a state inmate might obtain federal habeas corpus relief. 

First, the petitioner could prove that the decision of the last state court to review his 

conviction was contrary to or involved an unreasonable application of clearly 

established federal law. 28 U.S.C. § 2254(d)(1). Alternatively, the petitioner could prove 

that the state court’s decision was based upon an unreasonable determination of the 

facts. 28 U.S.C. § 2254(d)(2). Ordinarily, a petitioner presents a claim under only one of 

these grounds. Dassey presented his claim under both grounds, and even more 

extraordinarily the court granted him relief on both grounds. 

The court concluded that the state courts unreasonably found, as a factual 

matter, that the investigators never made Dassey any promises of leniency. See 28 U.S.C. 

§ 2254(d)(2). The record is clear that, throughout the interrogation, the investigators 

repeatedly and in various ways assured Dassey that they already knew all of the details 

about Dassey’s involvement in the events of October 31, 2005, and that he had nothing 

to worry about. Throughout the interrogation, the investigators repeatedly assured 

Dassey he would not be punished <strong>for</strong> telling them the incriminating details that they 


professed to already know. The Wisconsin Court of Appeals’ finding that there were no 

promises of leniency was against the clear and convincing weight of the evidence. Thus, 

this court reviewed de novo the question of whether Dassey's confession was voluntary 

and concluded that it was not. 

Independent of the court of appeals’ unreasonable factual finding that the 

investigators did not make Dassey any promises of leniency, this court also found that 

the court of appeals’ decision that Dassey’s statement was voluntary was an 

unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1). 

The court of appeals’ decision reflected a consideration of certain facts in isolation 

rather than under the totality of the circumstances, as the Supreme Court has made 

clear is required. Moreover, the court of appeals failed to consider the highly significant 

fact that, not only was an allied adult not present with Dassey during the interrogation, 

but the investigators deliberately exploited the absence of such an adult. Given the false 

assurances of leniency that the investigators made repeatedly throughout the 

interrogation, when considered alongside Dassey’s young age, significant intellectual 

deficits, lack of any unrelated experience with law en<strong>for</strong>cement, as well as other factors, 

Dassey’s confession was clearly involuntary. The court of appeals’ decision to the 

contrary was unreasonable. 

Thus, having been granted relief under both 28 U.S.C. § 2254(d)(1) and (d)(2), 

Dassey is arguably in a stronger position than the ordinary habeas petitioner. To 


ultimately prevail, Dassey need only persuade the court of appeals that one basis <strong>for</strong> the 

court’s decision was correct. 

V. Remaining Factors 

The remaining factors the court considers in deciding whether the respondent 

has overcome the presumption that Dassey should be released pending the appeal are 

the risk of irreparable injury to the state, the potential <strong>for</strong> injury to interested parties, 

and the public interest. The court acknowledges that the state and the public have an 

obvious interest in incarcerating persons convicted of violent crimes. However, if the 

fact of the petitioner’s prior conviction was all that was necessary to overcome the 

presumption that a successful habeas petitioner ought to be released pending appeal, 

Rule 23(c)’s presumption of release would be meaningless. Hampton v. Leibach, 2001 U.S. 

Dist. LEXIS 20983, 5 (N.D. Ill. Dec. 18, 2001). The fact that Dassey was convicted of 

brutal offenses and has a lengthy term of imprisonment yet to serve does “not 

distinguish this case from many, if not most, habeas situations.” Healy v. Spencer, 406 

Fed. Supp. 2d 129, 130 (D. Mass. 2005). And yet Rule 23(c) presumes that successful 

habeas petitioners will be released. 

Dassey has no criminal record other than this case. His prison disciplinary record 

is exceedingly benign. (See ECF Nos. 29-3, 29-4.) On one occasion he was given several 

packets of ramen noodles from another inmate without permission from prison 

authorities. (ECF No. 29-3 at 2-5.) On one other occasion he was found to have violated 


prison regulations by having items with tape on them and having used prison <strong>for</strong>ms to 

keep score in games. (ECF No. 29-3 at 6.) There is no hint of violent or antisocial 

behavior from his time in prison. In fact, in an offender per<strong>for</strong>mance evaluation Dassey 

received a near perfect score. (ECF No. 29-4.) He was characterized as always working 

in a cooperative manner with staff and other offenders, following directions, 

completing assignments, and per<strong>for</strong>ming with minimal supervision. In short, the 

respondent has failed to demonstrate that Dassey represents a present danger to the 

community. See Newman v. Harrington, 917 F. Supp. 2d 765, 790 (N.D. Ill. 2013) 

(“Petitioner had no record of a violent criminal history prior to his arrest in the case at 

issue, and Respondent has made no attempt to show that Newman poses a current risk, 

twelve years after the events at issue (<strong>for</strong> example, there is no indication that he has 

committed any acts of violence while incarcerated).” (emphasis in original).) 

Dassey remains in custody pursuant to what this court found to be a conviction 

obtained by way of unconstitutionally obtained evidence. He has already been 

incarcerated <strong>for</strong> over a decade, nearly 40 percent of his entire life. Cf. Hampton v. Leibach, 

2001 U.S. Dist. LEXIS 20983, 5-6 (N.D. Ill. Dec. 18, 2001) (“The fact that Hampton has 

already spent twenty years in prison does not mean that the Court can disregard the 

harm he will suffer from further imprisonment.”). “[E]very day Petitioner spends in 

prison compounds the ‘substantial harm’ that he has suffered on account of 

imprisonment based upon an unconstitutional conviction.” Newman, 917 F. Supp. 2d at 


789; see also Johnson v. Loftus, 2008 U.S. Dist. LEXIS 27826, 7-8 (N.D. Ill. Apr. 1, 2008) 

(“Petitioner has already served nine and a half years on a conviction that we have found 

to be constitutionally invalid, and he suffers additional harm every day his release or 

new trial is delayed.”). “The injury that Petitioner will suffer by continued detention is 

undeniably irreparable.” Newman, 917 F. Supp. 2d at 789. 

“Any harm to the State pales in comparison.” Harris v. Thompson, 2013 U.S. App. 

LEXIS 16715, 5 (7th Cir. Feb. 20, 2013). In the event the court of appeals disagrees with 

this court’s decision, Dassey will return to prison. The respondent does not argue that 

releasing Dassey now would result in Dassey avoiding serving his entire sentence 

should he be ordered to return to prison. Thus, the state’s interest in ensuring that 

persons convicted of crimes serve their full sentences is not undermined even if 

Dassey’s release should prove temporary. Moreover, the public interest ultimately lies 

in favor of ensuring that persons are not detained in violation of the constitution. 

Newman, 917 F. Supp. 2d at 790. 

The respondent does not argue that Dassey poses, in any way, a risk of nonappearance. 

Nor does the respondent request that Dassey post any bond, or that any 

surety guarantee his appearance, or that Dassey be subject to electronic monitoring. 

Indeed, the respondent does not request any conditions or express any view as to the 

conditions proposed by Dassey. 


Dassey’s family is concentrated in northeastern Wisconsin. There is no indication 

that he has the inclination (much less the means) to flee or will otherwise fail to appear 

as may be legally required. Moreover, Dassey has a strong interest not to flee. “[I]f he 

were to flee and become a fugitive while an appeal is pending, controlling law would 

result in this court’s judgment being vacated, and his … conviction[s] and sentence 

being reinstated despite his claims of innocence.” Watkins v. Miller, 2000 U.S. Dist. 

LEXIS 7131 (S.D. Ind. May 16, 2000) (citing Dently v. Lane, 720 F.2d 472 (7th Cir. 1983)). 

To the extent that a risk of non-appearance is inherent whenever a person faces a 

lengthy period of incarceration, these risks can be appropriately mitigated through 

routine conditions of release. See Newman, 917 F. Supp. 2d at 790. Dassey has offered a 

detailed release plan that was prepared with the assistance of a clinical social worker 

with experience in similar cases. That social worker would remain involved in assisting 

Dassey as he adjusts to freedom following his decade in prison. 

Another way the respondent may rebut the presumption in favor of release 

contained in Rule 23(c) is to show “that the state is quite likely to be able to retry, 

reconvict, and reimprison the applicant.” Walberg, 776 F.2d at 136. The respondent has 

made no ef<strong>for</strong>t to rebut the presumption of release in this manner. As this court noted in 

its decision granting the petition, “Dassey’s confession was, as a practical matter, the 

entirety of the case against him on each of the three counts.” (ECF No. 23 at 89); Dassey, 

2016 WL 4257386, 35, 2016 U.S. Dist. LEXIS 106971, 110. Presumably, if the state had 


other admissible, compelling evidence of Dassey’s guilt, it would have presented it at 

trial or in opposition to Dassey’s motion <strong>for</strong> release. In the absence of any argument 

from the respondent on this point, the court must conclude that, without Dassey’s 

March 1, 2006 confession, retrial, reconviction, and re-incarceration are unlikely. See 

Woods v. Clusen, 637 F. Supp. 1195, 1197 (E.D. Wis. 1986) (noting that the fact that “the 

case against [the petitioner] has been declared to be without foundation without his 

unconstitutionally obtained confession” supported release under Rule 23). 

Finally, the respondent asserts “that irreparable harm occurs to … the victim’s 

family whenever a person convicted by a state court of the gravest of criminal offenses 

is released be<strong>for</strong>e completing his sentence.” (ECF No. 31 at 12.) The respondent does not 

further develop this assertion. Nonetheless, the court was, and is, ever mindful of how 

its decisions inevitably impact Teresa Halbach’s family and friends. This court, like 

every court, wishes it could decide cases in a manner that minimized harm to these 

innocents. However, a court’s obligation to decide cases in accordance with controlling 

law often prevents that. 

The court granted Dassey’s petition and ordered that he be released or 

retried. There is a presumption that successful habeas petitioners are released while the 

respondent appeals that decision. The respondent has failed to rebut that presumption. 

The court does not find that the respondent has a strong likelihood of success on 

appeal. Moreover, the respondent has failed to show that the second and fourth factors 


under the traditional stay analysis militate against release such that a mere “substantial 

case on the merits” would favor denying the petitioner release pending appeal. See 

Hilton, 481 U.S. at 778. There<strong>for</strong>e, the court finds it must grant Dassey’s petition and 

order him released from the custody of the respondent. 

VI. 

Conditions 

However, because proceedings regarding Dassey have not yet concluded and 

Dassey may be required to serve the remainder of his sentence or otherwise appear <strong>for</strong> 

legal proceedings, the court will impose conditions upon Dassey consistent with those 

routinely imposed in analogous circumstances. Although the respondent does not 

request that the court order Dassey be subject to any <strong>for</strong>mal supervision, the court will 

order that Dassey be supervised by the United States Probation Office <strong>for</strong> the Eastern 

District of Wisconsin. United States Probation Officers are authorized to undertake such 

supervision pursuant to 18 U.S.C. § 3603(10), and courts routinely order such 

supervision when persons are released under Fed. R. App. P. 23. See, e.g., Harris v. 

Thompson, 2013 U.S. App. LEXIS 16715, 9-10 (7th Cir. Feb. 20, 2013); Newman v. Metrish, 

300 Fed. Appx. 342, 344 (6th Cir. 2008); Waiters v. Lee, 168 F. Supp. 3d 447, 455 (E.D.N.Y. 

2016); Decker v. Persson, 2015 U.S. Dist. LEXIS 153585, 17-18 (D. Or. Nov. 13, 2015); 

Newman v. Harrington, 917 F. Supp. 2d 765, 792 (N.D. Ill. 2013). 

Not only will the United States Probation Office monitor Dassey’s compliance 

with the conditions of release the court will impose, but Probation Officers are experts 


in addressing the issues that Dassey is likely to face upon being released after more 

than a decade in prison. Although Dassey has identified a social worker who will help 

his transition, United States Probation Officers are familiar with the community into 

which Dassey will be released and will be able to coordinate with the social worker to 

provide further support. 

Dassey’s release pending appeal is subject to the following conditions. Violation 

of any condition may result in the court ordering Dassey returned to custody pending 

the outcome of the appeal. 

Dassey shall not violate any federal, state, or local law. 

Dassey must appear in court as required and surrender to serve any sentence, as 

ordered by a court. 

Dassey shall comply with any applicable law regarding sex offender registration. 

Dassey shall be supervised by the United States Probation Office. He shall report 

as it directs. 

Dassey shall cooperate with the United States Probation Office including being 

available <strong>for</strong> any home visit it deems necessary. 

Within 48 hours of Dassey having contact with any police or law en<strong>for</strong>cement 

officer, Dassey shall report such contact to the United States Probation Office. 

Not later than 12:00 PM, Tuesday, November 15, 2016, Dassey shall provide to 

the United States Probation Office the address of his intended residence. 


The United States Probation Office shall then inspect Dassey’s intended 

residence and determine whether it is a suitable residence. 

The United States Probation Office is authorized to conduct any further 

investigation it deems necessary to assess whether the court should impose different or 

additional conditions upon Dassey. 

At any time the United States Probation Office may propose that the court 

impose additional conditions or modify conditions of Dassey’s release. 

Dassey shall obtain prior approval from the United States Probation Office be<strong>for</strong>e 

changing residences. 

Dassey shall provide to the United States Probation Office a phone number 

where he may be reached and shall immediately in<strong>for</strong>m the United States Probation 

Office of any changes. 

Dassey’s travel is restricted to the Eastern District of Wisconsin, see 28 U.S.C. 

§ 130(a); see also http://www.wied.uscourts.gov/counties-served-division, and, to the 

extent necessary to consult with legal counsel, the Northern District of Illinois, see 28 

U.S.C. § 93(a); see also http://www.ilnd.uscourts.gov/_assets/_documents/_ 

<strong>for</strong>ms/_clerksoffice/GeneralInfo/Districtmap.aspx. Any other travel must be approved 

in advance by the court. 

Dassey shall not obtain a passport. 


Dassey shall not possess a firearm, destructive device, or other dangerous 

weapon. 

Dassey shall not use or possess any controlled substance unless prescribed by a 

licensed medical practitioner. Dassey shall submit to any drug testing deemed 

appropriate by the United States Probation Office. 

Dassey shall have no contact with co-defendant Steven Avery. 

Dassey shall have no contact with the family of Teresa Halbach. 

IT IS THEREFORE <strong>ORDER</strong>ED that Dassey’s motion <strong>for</strong> release pursuant to Fed. 

R. App. P. 23(c) (ECF No. 29) is GRANTED. The respondent shall release the 

respondent upon the United States Probation Office notifying the court that it has 

approved the proposed residence and completed whatever additional investigation it 

deems necessary. The court will then issue a further order directing the respondent to 

release the petitioner. 

Dated at Milwaukee, Wisconsin this 14th day of November, 2016. 

_________________________ 

WILLIAM E. DUFFIN 

U.S. Magistrate Judge

ORDER-Granting-Motion-for-Release-on-Recognizance

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